A Preservationist’s Guide to the DMCA Exemption for Software Preservation

A Preservationist’s Guide to the DMCA Exemption for Software Preservation. Kee Young Lee and Kendra Albert. Software Preservation Network and the Cyberlaw Clinic @ the Berkman Klein Center. December 10, 2018.  [PDF]
     "The Library of Congress recently adopted several exemptions to the Digital Millennium Copyright Act (DMCA) provision prohibiting circumvention of technological measures that control access to copyrighted works. The exemptions went into effect on October 28, 2018 and last until October 28th, 2021. This guide is intended to help preservationists determine whether their activities fall under the new exemption."  The Software Preservation Network has obtained temporary exemptions which remove the legal liability for circumventing technological protection measures for preserving the software or resulting files, provided that certain conditions are met. These exemptions do not remove legal liability for copyright infringement of the underlying software itself.

The guide provides excellent information on the issues and the exemptions. The exemptions are  generally directed to preservation activities  by libraries, archives, and museums, but there are five criteria required in order to claim the exemption. The library, archive, or museum must:

1. Make its collections open to the public or routinely available to unaffiliated outside researchers.
2. Ensure that its collections are composed of lawfully acquired or licensed materials.
3. Implement reasonable digital security measures for preservation activities.
4. Have a public service mission.
5. Have trained staff or volunteers that provide services normally provided by libraries, archives, or museums

In addition, there are requirements for using the preserved software:

• The computer program must have been lawfully acquired.
• The software must no longer be reasonably available in the commercial marketplace.
• The sole purpose of the circumvention activity must be for lawful preservation of the computer program or digital materials that are dependent on a computer program.
• The computer programs cannot be used for commercial advantage.
• Use of the exemptions can only be for non-infringing uses of the software.
• Copies of the computer programs cannot be made available outside of the physical premises of the library, archive, or museum.

These exemptions are only for three years, so evidence of software preservation activities will help to renew the exemptions.

The Guide also includes a DMCA Exemption for Software Preservation Checklist.

Digital Preservation Matters.

Copyright is Not Inevitable, Divine, or Natural Right

Copyright is Not Inevitable, Divine, or Natural Right. Kenneth Sawdon. ALA Intellectual Freedom Blog. October 19, 2016.
     A copyright lawsuit was decided in India that allows academia to create unlicensed coursepacks and allow students to photocopy portions of textbooks used in their classes. The Court dismissed the case brought by publishers and "held that coursepacks and photocopies of chapters from textbooks are not infringing copyright, whether created by the university or a third-party contractor, and do not require a license or permission". Unlicensed custom coursepacks are not covered under fair use in the U.S. but they are in India.

The ruling included this quote about what copyright is:

"Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public."

This ruling doesn’t suggest that everything is fair game, but only that the use of textbook excerpts in India is fair use. "Stopping a university or third-party from providing coursepacks or textbook excerpts merely prevents the students from getting the most convenient source for information that they are free to use."  The Court held that when texts are used for imparting education and not commercial sale, it can’t infringe on copyright of the publishers. In the United States the defense for fair use involving coursepacks failed a legal challenge.

Digital Preservation Matters.

Important Win for Fair Use

Important Win for Fair Use in ‘Dancing Baby’ Lawsuit. Electronic Frontier Foundation. September 14, 2015.
     A federal court affirmed in a ruling about Lenz v. Universal, often called the “dancing baby” lawsuit, that copyright holders must consider fair use of material sending a copyright takedown notice.  The United States Court of Appeals for the Ninth Circuit ruled that copyright holders must consider fair use before trying to remove content from the Internet. It also rejected the claim that "a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss."

• “Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech. 
• We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”

Digital Preservation Matters.

CCIA Releases Webinar, Whitepaper: “Copyright Reform For A Digital Economy”

CCIA Releases Webinar, Whitepaper: “Copyright Reform For A Digital Economy”. Heather Greenfield. Computer & Communications Industry Association.  August 25, 2015. [PDF]
     There is a possibility of copyright reform in the near future. The Computer & Communications Industry Association has released its latest whitepaper “Copyright Reform For a Digital Economy” along with a webinar. Points and quotes from the whitepaper:

Copyright exists to incentivize authorship with the prospect of economic reward and to promote the public good. Copyright grants temporary monopoly privileges in order to turn private motivation into public benefit, so the laws must always be balanced in favor of the public interest. This is one of various ways to promote creativity and innovation.

Any reform to copyright law should include two important principles:

1. accommodate new technology innovation and commerce so as not to make every licensee or consumer a copyright infringer; and
2. provide certainty to businesses that are not the “content industry” but are nevertheless substantially affected by the Copyright Act.

Other notes and quotes:

• Copyright is an important way to "incentivizing the creation of certain kinds of economically valuable content" however it inhibits some creative models.
• Empowered by new technology and the Internet, virtually everyone may become a content creator with a potentially limitless audience.
• Survey data suggests there is declining public respect for copyright.
• Exceptionally long copyright terms have proven to be a significant problem for researchers, historians, and preservationists.
• “[o]verprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain.”

Technology, especially Internet-enabled technology, has radically advanced the economy in recent years. To make sure that this growth continues, "any copyright reform should acknowledge the significance of doctrines ensuring copyright flexibility, particularly limitations and exceptions like the fair use doctrine and first sale."

Another difficulty is the interaction of copyright law with contract "It is not uncommon for licenses to prohibit the user from exercising rights under the Copyright Act, such as fair use" which means that a contract can defeat Congressional intent.

Copyright trolls are known for their abusive litigation tactics, such as “baseless shakedowns,” shotgun style law suits, and using copyrights acquired for the purpose of suing. They rely on astronomical awards for damages  which they use as a punitive tool, “designed to discourage wrongful conduct.” 

Congress needs to, among other things, ensure fair use is central to any legislation, preserve the first sale doctrine, reform the licensing landscape, and provide greater guidance under the law.

It is important that any copyright reform makes the system fit for a digital environment. [I would add to allow preservation of digital content.]

Digital Preservation Matters.

UK High Court: Format changes, backups, and private copies are illegal

Ripping music and films illegal again after High Court overturns new law. BBC Newsbeat. 17 Jul 2015.
     The UK government introduced a law, Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 in October 2014, meaning it was legal to transfer music from one format to another in your home library and to make back-ups for personal use. (It was still illegal to share those copies with friends or family or to sell on that music or data). But that law has been overturned in the UK High Court which affects at least CDs, DVDs, Blu-rays, MP3s, and e-books.
The High Court said the government acted unlawfully by introducing an exception to copyright for private copying without fair compensation. The change in the law has implications for teachers who use copyright materials on interactive whiteboards and writers who quote other sources.

The UK just made iTunes illegal. Buster Hein. Cult of Mac. August 6, 2015. 
     In a discussion with the UK Intellectual Property Office, they said “It is now unlawful to make private copies of copyright works you own, without permission from the copyright holder – this includes format shifting from one medium to another. It includes creating back-ups without permission from the copyright holder as this necessarily involves an act of copying.” 

[This will likely affect libraries, archives and museums who may receive donations of computers and media; they would need to ensure before processing that there are no copyrighted materials included.]

Digital Preservation Matters.

Australian electronic books to be preserved at the National Library in Canberra under new laws

Australian electronic books to be preserved at the National Library in Canberra under new laws. Clarissa Thorp. ABC. 3 July 2015.
Starting in January of next year digital materials including e-books, blogs, prominent websites, and  important social media messages will be collected as a snapshot of Australian life. Under existing copyright laws, the National Library of Australia is able to collect all books produced by local publishers through the legal deposit system. Now with new legislation adopted by the Federal Parliament the Library will be able to preserve published items from the internet that could disappear from view in future. "This legislation puts us in a position where we are able to ask publishers to deposit electronic material with the National Library in a comprehensive way." "So we will be able to open that up and collect the whole of the Australian domain, for websites for example it means we are able to collect e-books that are only published in digital form." This new legislation will expand the Library's digital preservation program and ensure that future collections reflect Australian society as a whole.

Digital Preservation Matters.

ARSC Guide to Audio Preservation

ARSC Guide to Audio Preservation. Sam Brylawski, et al. National Recording Preservation Board of the Library of Congress. May 2015. [PDF, 252 pp.]
CLIR, the Association for Recorded Sound Collections (ARSC) and the National Recording Preservation Board (NRPB) of the Library of Congress, has published CLIR Publication No. 164, an excellent guide to audio preservation.
"Our audio legacy is at serious risk because of media deterioration, technological obsolescence, and, often, lack of accessibility. This legacy is remarkable in its diversity, ranging from wax cylinders of extinct Native American languages to tapes of local radio broadcasts, naturalists’ and ethnographers’ field recordings, small independent record company releases, and much more. These recordings are held not by a few large organizations, but by thousands of large and small institutions, and by individuals. The publishers hope that this guide will support and encourage efforts at all institutions to implement best practices to help meet the urgent challenge of audio preservation."

Chapters include:

• Preserving Audio (Recorded Sound at Risk, Preservation Efforts, Roles)
• Audio Formats: Characteristics and Deterioration (Physical, digital)
• Appraisals and Priorities (Tools; Selection/collection policies, decisions)
• Care and Maintenance (Handling, assessment) and arrangement
• Description of Audio Recordings (Metadata, standards, tools)
• Preservation Reformatting (Conversion to digital files, metadata, funding)
• Digital Preservation and Access: Process, storage infrastructure
• Audio Preservation: The Legal Context (Copyright, control, donor agreements)
• Disaster Prevention, Preparedness, and Response
• Fair Use and Sound Recordings Lessons

Some notes from reading the publication:

• the ultimate goals of preservation are sustained discovery and use
• all these dissimilar recordings together represent is an audio DNA of our culture
• our enjoyment of the recordings has far exceeded our commitment to preserve them
• history is represented in sound recordings; it entertains and enriches us
• if compressed files are the only versions available to the public, we have no assurances that anyone is maintaining the higher fidelity originals
• efforts of large and small institutions and private collectors are needed to make a meaningful dent in the enormous volume of significant recordings not yet digitized for preservation
• if we are to preserve our audio legacy, all institutions with significant recordings must be part of the effort
• proactive attention, care, and planning are critical to the future viability and value of both analog and digital recordings
• institutions often have more items in their care than they have resources for adequate processing, cataloging, and preservation
• the potential technical obsolescence of the hardware to play a recording should influence priorities and resources allocated for preservation
• perhaps the most crucial feature a metadata schema is its degree of interoperability for sharing, searching, harvesting, and transformation or migration  
• the preservation choice is not binary "either we implement intensive preservation immediately and forever; or we do nothing". We should not delay action because the ideal cannot be achieved
• preservation metadata is the information needed to support the long-term management and
  usability of an object 
• the Broadcast Wave Format (BWF) is the de facto standard for digital audio archiving
• monitoring and planning to avoid obsolescence are important aspects of a solid digital preservation strategy
• audio preservation is an ongoing process that may be challenging and intimidating; setting priorities is central to a successful preservation strategy
• digital preservation will enable the fulfillment of the goal of long-term use (whether focused on education, scholarship, broadcasting, marketing, or sales)
• ensure that there is at least one geographically separate copy of all digital content
• recognize the use of sound recordings as sources of information by students and researchers
• libraries and memory institutions should provide points of cultural reference for the current generation of creators

Several free, open source software tools are available

• assessing audio collections for the purpose of setting preservation priorities
• The Field Audio Collection Evaluation Tool (FACET)
• Audio/Video Survey
• Audiovisual Self-Assessment Tool (AvSAP)
• MediaSCORE and MediaRIVERS
• metadata tools
• CollectiveAccess
• Audio-Visual and Image Database (AVID)
• AudioVisual Collaborative Cataloging (AVCC)
• PBCore

 "When libraries, archives, and museums exercise their legal rights to preserve and facilitate
access to information, even without permission or payment, they are
furthering the goals of copyright."

"The professional management of a collection requires the development of criteria for selecting and preserving collections of sound recordings. A selection or collection development policy defines and sets priorities for the types of collections that are most appropriate and suitable for an organization to acquire and to preserve. The basis for these criteria should be the goals and objectives of the individual institution."

Digital Preservation Matters.

Legal Aspects for Digital Preservation Domain

Legal Aspects for Digital Preservation Domain. Barbara Kolany-Raiser, Marzieh Bakhshandeh, José Borbinha, Silviya Yankova. iPres Proceedings. 2014. 
This paper proposes a legal model for the digital preservation domain. This is intended to include different perspectives and facilitate the translation and mapping of legal information in the digital preservation area. A legal perspective is important for technology developments, and when copyright protected data has to be preserved digitally, care must be taken so that the digital preservation system processes do not violate this right. The rights holder for the data must explicitly grant use and preservation rights. "Every digital preservation activity must ensure the authenticity and legitimacy of the performed actions and processes." The paper recommends integrating legal perspectives into the digital preservation process, and it includes a conceptual map of this legal perspective describing the concepts and the relationships.

 Digital Preservation Matters.

The truth about contracts

The truth about contracts. Kevin Smith. Scholarly Communications at Duke. February 13, 2015.
This post looks at how to license student work for deposit in an institutional repository and also some basic truths about contracts and licenses.  It is a good statement of what contracts and licenses are. Contracts are business documents, intended to accomplish specific goals shared by the parties; they should clearly express the intentions of the parties involved.

Contracts can supersede copyright law "not because they are so 'big' but because they are small."   A contract is a “private law” arrangement by which two or more parties rearrange their relationship.  It need not be formal; it is simply the mechanism we use to arrange our relationships in a great many situations, including teaching situations that implicate the copyrights held by students.

A license is “a revocable permission to commit some act that would otherwise be unlawful". Not all licenses are contracts, but most are.

Digital Preservation Matters.

Why Netflix sends 'Orange is the New Black' to the Library of Congress on videotape

Why Netflix sends 'Orange is the New Black' to the Library of Congress on videotape. And why the library hopes that's going to change. Adi Robertson. The Verge. October 29, 2014.
After companies shut down and collectors lose interest, the Library of Congress is supposed to keep our cultural history intact. But digital media has turned our understanding of preservation on its head.
Artists regularly register their work with the US Copyright Office and as part of the process, they send a copy, in some cases a physical copy to the registrars which is then stored by the Library of Congress. The physical copies aren’t the final storage method, just a way to get the file to the library, which then uploads them to its database. Delivering digital files on potentially lower-quality tapes and discs instead of transmitting them directly is an awkward stopgap. A pilot program is in process to allow studios to transfer files directly to the Library of Congress and the US Copyright Office.

Digital Preservation Matters.

Tor Books says cutting DRM out of its e-books hasn’t hurt business.

Tor Books says cutting DRM out of its e-books hasn’t hurt business. Megan Geuss.   Ars Technica. May 4, 2013.

Tor Books announced last April that it would only retail e-books in DRM-free formats because its customers are “a technically sophisticated bunch, and DRM is a constant annoyance to them. It prevents them from using legitimately-purchased e-books in perfectly legal ways, like moving them from one kind of e-reader to another."

This week, Julie Crisp, editorial director at Tor UK, wrote that the publisher has seen “no discernible increase in piracy on any of our titles, despite them being DRM-free for nearly a year.”

Tor's 2012 decision was largely applauded by its customers and authors. The authors agreed to a scheme which would allow their readers greater freedom with their novels.

Digital Preservation Matters.

UPDATE 1-Capitol wins digital records lawsuit vs ReDigi start-up.

UPDATE 1-Capitol wins digital records lawsuit vs ReDigi start-up. Jonathan Stempel and Alistair Barr. Reuters. Apr 1, 2013.

U.S. District Judge Richard Sullivan ruled in the case Capitol Records LLC v. ReDigi Inc, U.S. District Court, Southern District of New York, No. 12-00095.

• ReDigi was not authorized to allow listeners to use its platform to buy and sell "used" digital music tracks originally bought from Apple Inc's iTunes website.
• This will profoundly affect any digital re-sale marketplace [and digital preservation] by limiting what can be sold as "used" or by forcing sellers to obtain copyright holders' approval before transacting business.
• ReDigi's service "infringes Capitol's reproduction rights under any description of the technology" 
• The service "does not deserve protection under the theory of fair use."
• "It is beside the point that the original phonorecord no longer exists. It matters only that a new phonorecord has been created."
• "Because it is therefore impossible for the user to sell her 'particular' phonorecord on ReDigi, the first sale statute cannot provide a defense."

Related articles:
Think you own your downloads? Court deals blow to 'used' digital goods market.
Judge rules digital music cannot be sold 'second hand'
Reselling Digital Goods Is Copyright Infringement, Judge Rules

Digital Preservation Matters.

The Copyright Rule We Need to Repeal If We Want to Preserve Our Cultural Heritage

The Copyright Rule We Need to Repeal If We Want to Preserve Our Cultural Heritage. Benj Edwards. The Atlantic. Mar 15 2013.
The anti-circumvention section (1201) of the Digital Millennium Copyright Act needs to be repealed. The law threatens consumer control over the electronic devices we buy, but if the DMCA remains unaltered, cultural scholarship will soon be conducted only at the behest of corporations, and public libraries may disappear entirely. The DMCA prevents sharing information and sharing is vital to  preserve information. To properly preserve digital works, libraries and archives must be able to copy and media-shift them without fear of legal problems. The provisions in the DCMA are unacceptable and must change, or as a society we must be willing to say goodbye to libraries and the concept of universal public access to knowledge.

Digital Preservation Matters.

Digital Curation Bibliography

Digital Curation Bibliography: Preservation and Stewardship of Scholarly Works, 2012 Supplement. Charles W. Bailey, Jr. March 2013.

Bibliography: Preservation and Stewardship of Scholarly Works, 2012 Supplement, which presents over 130 English-language articles, books, and technical reports published in 2012 about digital curation and preservation, copyright issues, digital formats (e.g., media, e-journals, research data), metadata, models and policies, national and international efforts, projects and institutional implementations, research studies, services, strategies, and digital repository concerns.

It is a supplement to the Digital Curation Bibliography:Preservation and Stewardship of Scholarly Works, which covers over 650 works published from 2000 through 2011.

 

Digital Preservation Matters.

Opinion: Why the Bruce Willis Apple iTunes story matters

Opinion: Why the Bruce Willis Apple iTunes story matters. Jonny Evans. Computerworld. September 04, 2012.
Article discussing a possible lawsuit against Apple in order to regain the right to bequeath iTunes music collection. "The music industry isn’t really about music: it’s about formats and distribution. First there was ... sheet music, then 78rpm records, then 45rpm vinyl, Super8, cassette, CD -- and now digital. The only difference between each evolving format is that the industry willfully ignored digital until it was too late for it to completely control music acquired in those formats.
That’s why label bosses (who like to pay artists a mere 10-13 percent of the profits of music releases) stress artist “rights” while insisting on ever more draconian monitoring of the online world in order to ensure distribution of tracks they acquire rights to is controlled."
"If the music industry were about music then every track ever licensed by labels would be made available via all digital services."
The only reason for a label refusing to allow music to be left to friends or family is to "ensure that when the next evolution of music distribution takes place it can ensure we all invest in the same music in a different format." The industry wants to keep an even bigger slice of the overall income while making users pay regular recurring subscription fees to access music that is never actually owned, or in other words, making a system of lifetime rentals.  While there is not yet a lawsuit, it does draw attention to a consumer right that’s been quietly obliterated in the digital age: the chance to actually own the collection of digital music.

Digital Preservation Matters.

Record Industry Braces for Artists’ Battles Over Song Rights.

Record Industry Braces for Artists’ Battles Over Song Rights.  Larry Rohter. New York Times.  August 15, 2011.
When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years.  The record companies believe the termination right doesn’t apply to most sound recordings. The copyright law went into effect on Jan. 1, 1978, so the earliest any recording can be reclaimed is Jan. 1, 2013.  A resolution is probably not possible without a definitive court ruling.